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• Title: John Mitchel & A. v. Dover
• Author : Supreme Court of New Hampshire
• Release Date : January 22, 1953
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 63 KB

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The defendant first asserts that by its exception to the orders of mistrial made by the Presiding Justice after the close
of the evidence, the cases are transferred to this court for a determination of the facts. With this contention we are not
in agreement. The general ground upon which a mistrial is ordinarily declared by the Trial Court is the existence of some
circumstance which indicates that Justice may not be done if the trial continues to a verdict. The result of such an order,
whether made after the close of the evidence or at an earlier point in the trial, is the discharge of the trier of facts,
be it a jury or the court, without a determination of any facts, and a later trial of the case de novo before another jury
or another Justice of the court. Since the establishment of our Supreme and Superior Courts in 1901, it has been clearly recognized
that questions of fact arising in the course of trials in the Superior Court are to be decided there. Romano v. Company, 95
N.H. 404, 406 , and cases cited. While questions of law raised during the first trial may be transferred to this court for
determination in advance of the new trial (see Lavigne v. Nelson, 91 N.H. 304, 309 , and cases cited), the questions of fact
involved in a decision of the merits are reserved exclusively for the Superior Court. The case of Perkins v. George, 45 N.H.
453, relied on by the defendant, involved an appeal from a probate court and is not in point. That appeal transferred the
entire subject matter of the appeal, including the determination of questions of fact by trial de novo, to the Supreme Judicial
Court which then had, at its trial sessions, the same jurisdiction as is now reserved to our Superior Court, where it was
treated as an original proceeding. Brown v. Jewell, 86 N.H. 190, 192. The decision of the Trial Court, made upon his own motion, that he should disqualify himself occurred after his denial of
the defendant's motions for nonsuits and the completion of the testimony. No reason was assigned for his decision nor does
the record indicate any. Under these circumstances, it must be assumed that his disqualification existed from the commencement
of the trial although evidently not apparent to him until its completion. Whether his disqualification was such as to render
his acts void or merely voidable (see Moses v. Julian , 45 N.H. 52; Fowler v. Brooks, 64 N.H. 423), the effect of his decision
was the voiding of all orders, other than merely formal ones, made by him in connection with the case, including his denial
of the defendant's motions for nonsuits. While this would normally leave the defendant without an exception for our consideration
at this time, it is thought expedient to now pass upon the issues raised by the defendant's motions as if transferred here
without ruling.

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